Tla’Amin Elders Against Treaty v. British Columbia Treaty Commission, 2013 BCSC 578, Supreme Court of British Columbia (Ehrcke J.), 4 March 2013

The B.C. Supreme Court dismissed an application by the plaintiffs for an injunction to prevent the ratification and implementation the treaty between Canada, British Columbia and the Tla’amin (Sliammon) First Nation. The plaintiffs could not satisfy the RJR-MacDonald test of showing irreparable harm or that the balance of convenience favours the granting of an injunction. The Court also adjourned an application to allow the plaintiffs to amend their pleadings.

This action involves the negotiation of a treaty between the Tla’amin (Sliammon) First Nation, Canada and BC. After many years of negotiation, a final agreement was initialled in October 2011. A ratification vote set for June 2012 did not proceed due to a blockade by certain Band members. Those events led to the decision of Mr. Justice Savage in Sliammon Treaty Society v. Point, 2012 BCSC 1038 in which an injunction order was made against the dissidents. [This case was summarized in our e-Newsletter of 17 July 2012]. The ratification vote then proceeded on 10 July 2012.

The plaintiffs in this action allege improprieties and irregularities in the voting process and the treaty negotiation process. The defendants have applied to strike the claim, but that application has not yet been heard.

The Court held that the plaintiffs could not satisfy the test for an injunction. They failed to demonstrate irreparable harm. Following the observations of the Court in Saulteau First Nations v. Canada, 2007 BCSC 492, Ehrcke J. held that it would still be open to the plaintiffs to make their arguments about irregularities and improprieties at trial. If they succeed at trial, the treaty will be declared a nullity. Further, the balance of convenience does not favour the granting of an injunction. The Court was satisfied that the defendants would suffer more harm from an injunction than the plaintiffs would suffer from the refusal of an injunction. It would further complicate and delay the pre-treaty process and add to expense.

The pleadings application was adjourned generally on the basis that the plaintiffs had failed to serve the Defendants with the proposed amendments to the Notice of Civil Claim.

The Court made no order as to costs.
http://www.courts.gov.bc.ca/jdb-txt/SC/13/05/2013BCSC0578.htm

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-604-4029
skerwin@blg.com

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Scott Kerwin 
SKerwin@blg.com
604.640.4029

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Aboriginal Law